Delegating or Divesting?, by Philip Hamburger
One of the most gratifying features of recent scholarship debating the constitutionality of administrative power has been the resurgence of interest in the founding. Not only critics of administrative power but also its defenders hark back to the Constitution’s early history. One of the most recent such justifications of administrative power in historical terms is Delegation at the Founding by Julian Davis Mortenson and Nicholas Bagley. Although thus far only posted on SSRN, it has provoked much interest, even in the popular press, for its historical challenge to the Nondelegation Doctrine.
But is its critique justified? A recent essay of mine, Delegating or Divesting?, questions its approach. One difficulty lies in the evidence. My essay’s detailed analysis of Mortenson and Bagley’s evidence need not be repeated here, but there are multiple reasons for concern. Their piece clusters together a near menagerie of eighteenth-century sources, European as well as American, under the legitimizing rubric of “What the Founders Said.” Moreover, when quoting eighteenth-century authors, the article at times makes errors of omission and commission—leaving out passages that contradict its position and misunderstanding the passages it recites.
My goal in the essay and here, however, is not to defend the Nondelegation Doctrine from unmerited attack. Rather, on a more positive note, the larger point is to take the opportunity provided by the Mortenson and Bagley article to offer a fresh perspective on some vital constitutional questions.
First, the Nondelegation Doctrine should be put aside—but not on the grounds offered by Mortenson and Bagley. If it has weak foundations in the Constitution, this is because the Constitution speaks instead in much stronger terms about vesting. The Constitution vests legislative powers in Congress, and that body therefore cannot divest itself of the power that the Constitution vests in it. Thus, what are commonly understood as delegation questions turn out in reality to be a matter of vesting and divesting. What is needed, therefore, is a shift in focus from questions about delegating to concerns about divesting.
Second, my essay suggests a more accurate understanding of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that it is confined to law execution. But almost all such scholarship tends to ignore another conception of executive power as the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution.
And this leads to a final concern. If there is to be a valuable debate over administrative power, it needs to focus on the constitutional issues actually at stake. My essay’s claims about divesting and about executive force have both appeared in my prior writing, and the divesting argument was picked up by Justice Gorsuch in Gundy. It is therefore striking that the Mortenson and Bagley article does not even acknowledge these key arguments—even though it purports to take aim at my scholarship and Gorsuch’s opinion in Gundy. Ultimately, therefore, the Article seems out of date. If the debate were really still the same as in the 1930s, the Article would be on point in critiquing the Nondelegation Doctrine. But the focus of debate has been evolving from delegation to divesting, and the Article’s attack on nondelegation thus seems to be an assault more on the dead than the living.
For further details, see Delegating or Divesting?, which is forthcoming in the Northwestern University Law Review Online.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and President of the New Civil Liberties Alliance.